Scoot Back

SCOOT BACK: ADDRESSING THE CHALLENGES POSED BY THE SUDDEN EMERGENCE OF THE E-SCOOTER INDUSTRY

By: Alec Minea, Volume 103 Staff Member

The scooter, the trendiest[1] and least efficient[2] transportation method of the early 2000s, experienced a glorious, evolutionary resurgence in 2018. Seemingly overnight, cities across the United States became inundated with souped-up, electric versions of their turn-of-the-century counterparts.[3]However, while thousands of commuters across the country quickly embraced this alternative form of transportation,[4] the cities in which these commuters reside were less welcoming.[5] In turning away the scooters, cities cited a number of concerns, including a lack of a business license, public safety hazards, and public nuisance.[6] Despite these concerns, e-scooter companies have continued to expand their reach, and their popularity is helping to motivate compromise. The compromises that Santa Monica, San Francisco, San Antonio, Minneapolis, and other municipalities have reached with e-scooter companies provide strong evidence of what future e-scooter regulation could look like in other cities around the country.

The rise of e-scooters can be directly tied to the search for micro-mobility solutions. Micro-mobility services seek to reduce urban congestion by introducing alternative, green forms of transportation into city centers.[7]The belief is that, as cities become increasingly densely populated, micro-mobility services will be able to take the place of traditional automobile transport for short trips.[8] Several Asian countries already boast extensive bike-share programs aimed at correcting this same issue, and companies have begun launching similar bike-sharing services in the United States.[9]The e-scooter movement was born of a similar desire to reduce automobile dependence and congestion in city centers. In fact, two of the largest e-scooter companies, Bird and Lime, cite reducing congestion and automobile dependence as two of their guiding principles.[10] These goals are honorable, but, in many cases, e-scooter companies’ approaches to gaining a foothold in the micro-mobility market angered city officials and caused safety hazards, potentially complicating the future regulation of their services.

Much of the backlash against e-scooters stems from their approach to entering new markets. Several years ago, when ride-sharing company Uber began offering its services, it elbowed its way into cities and gained a foothold in the transportation industry through “principled confrontation.”[11]This approach was characterized by “barrel[ing] into new markets, establish[ing] a base of enthusiastic riders and drivers, and us[ing] that grassroots support to try to fend off opposition.”[12] E-scooter companies have followed a similar approach. In many cases, scooters would simply be placed on the sidewalks of a city overnight, without any prior warning.[13]This left cities scrambling to figure out how to regulate the scooters.[14]Similarly to Uber, this gave e-scooter companies an opportunity to recruit riders and build public support prior to the development of more comprehensive regulations.[15] This lack of local compliance led to many cease-and-desist notifications, as well as the subsequent impounding of delinquent devices.[16] These crackdowns were often accompanied by outright bans and the issuance of citations.[17] Nonetheless, many of these scooter prohibitions were short-lived, as cities quickly drafted new regulations and welcomed scooter companies back to their streets.[18]Despite this quick turnaround, there are some cities, like Seattle, that are continuing to enforce their scooter bans, citing concerns about safety and sidewalk clutter.[19] These holdouts are few and far between though, and the vast majority of cities are working with e-scooter companies in order to find a solution that will be workable for all parties.[20]

While the prevalence and popularity of e-scooters continue to increase due to their ease of use and expanding accessibility, they are also gaining notoriety for more ignominious reasons. Chief among these concerns is safety. Over the months since their arrival, e-scooters have been involved in an increasing number of accidents and have even been implicated in several deaths.[21] In fact, a class-action lawsuit was recently filed accusing Bird, Lime, and other e-scooter companies of gross negligence and aiding and abetting assault.[22] Additional safety issues include blocking sidewalks, obstructing business entrances, and creating obstacles for the vision-impaired.[23] It will be imperative for regulators to address these safety issues as they look for ways to manage e-scooters in the future.

Despite a somewhat difficult beginning, cities’ willingness to adapt to this new form of transportation seems to bode well for the industry. Additionally, Americans have largely positive perceptions of e-scooters,[24] and public opinion, along with lobbying efforts, will likely go a long way toward convincing local governments to find some sort of e-scooter solution.[25] In many cases, the issue is not a lack of interest in accommodating e-scooters but rather, a complete lack of precedent. As Bird’s CEO, Trevor VanderZanden, noted, many cities simply never considered e-scooters when passing laws.[26] Consequently, most places are bereft of applicable regulatory laws, but as the rise of e-scooters continues, it is almost certain that more cities will begin to adopt e-scooter ordinances.[27] However, based on the variety of legal and safety issues that have arisen since the scooters’ launch, it is also likely that future e-scooter transportation will be more heavily regulated than it was this past summer, in the lawless days of the industry’s infancy.[28]

The most likely approach to allowing e-scooters while also addressing these safety concerns is for cities to pass “common sense” regulations[29]that prescribe specific rules for e-scooters. These regulations would likely seek to more seamlessly integrate scooters into cities’ pre-existing transportation systems. San Antonio, for example, recently approved a set of e-scooter rules in conjunction with the authorization of an e-scooter “pilot program.”[30] San Antonio’s regulations stipulate that e-scooter riders must yield to pedestrians and ride in bike lanes when possible, although riding on the sidewalk is permitted when no bike lane is available.[31] In addition, operating companies are required to have insurance, pay fees, both initially and per vehicle, employ a manager, and “work quickly to correct any violations—such as illegally parked scooters.”[32] The parking regulations include prohibitions on blocking sidewalks and other haphazard placement, with the potential for the operating company to be fined if violations are not rectified.[33] The approach in San Antonio shares similarities to the regulations seen in other cities[34] and is a likely indication of how cities will continue to handle e-scooters in the future. Drafting simple provisions, like the ones in San Antonio, addresses many of the concerns that plagued the e-scooter industry’s launch. Regulations like these will provide more standardized operation, which, in turn, should increase safety. They will also call for some accountability from the operating companies, which should also increase safety. For the most part, these regulations are prudent measures that are meant to permit e-scooter companies to continue to operate, while also providing some order, regularity, and safety to e-scooter operation. And, with cities poised to reap benefits from the e-scooter industry as well, it makes all the sense in the world for them to institute solutions that increase safety, while still permitting the e-scooter industry to grow.[35]

Overall, the e-scooter industry developed extremely rapidly, and, with adoption rates still low,[36] as well as the massive potential for market growth,[37] it is highly likely that the industry will continue to develop over the coming months and years. This future development has the potential to create additional safety or legal concerns, but it can be expected that, in the meantime, cities will continue with their current “soft touch” regulatory approach.[38] This “soft touch” approach contrasts with the strict regulations that were initially adopted by San Antonio, and many other cities, when Uber and Lyft first came to town. This approach is intended to “keep riders and pedestrians safe while giving the new. . . business an opportunity to flourish.”[39] As additional issues arise, it can be expected that new regulations will be put in place, but for now, expect to see additional common-sense regulations aimed at improving safety of e-scooter users, as well as pedestrians. These regulations are likely to add a small measure of complexity in the short-term but will also likely increase safety for everyone. Unless significant, unforeseen legal and safety concerns arise, it can be fully expected that the scooter will, once again, reclaim its throne as the trendiest form of transportation.

See Scooting to Success, CNN Money (Nov. 21, 2000), https://money.cnn.com/2000/11/21/cashflow/q_razor/; Dina Spector, 9 Holiday Toy Fads That Made People Go Bonkers, Business Insider (Dec. 22, 2011), https://www.businessinsider.com/best-selling-toys-christmas-last-decade-2011-11 (noting that, in 2000, more than 5 million Razor scooters were sold, scooters were named the “Toy of the Year,” and scooters were immensely popular with children and adults alike).

Seeid. (discussing the sudden rise of electric scooters in American cities).

See Alex Wilhelm, Charting Bird and Lime’s Rapid Growth, Crunchbase News (Sept. 20, 2018), https://news.crunchbase.com/news/charting-bird-and-limes-rapid-growth/ (noting that as of September, two of the largest electric scooter companies, Bird and Lime, had been used for more than 20 million rides).

Even the mayor of Santa Monica, the home of Bird, was unaware of the impending arrival of the company’s scooters. After the scooters were placed on the city’s streets, Bird’s CEO finally made contact with the mayor via LinkedIn and began to discuss the possibility of gaining municipal approval. See Noah Smith, Sudden Appearance of Electric Scooters Irks Santa Monica Officials, Wash. Post (Feb. 10, 2018), https://www.washingtonpost.com/national/sudden-appearance-of-electric-scooters-irks-santa-monica-officials/2018/02/10/205f6950-0b4f-11e8-95a5-c396801049ef_story.html?utm_term=.be39969c75c6.

Id.

Seeid. (noting Santa Monica officials’ confusion on how to regulate e-scooters, as well as the rapid adoption and wide-spread use of the scooters in the interim).

For example, after a brief ban, San Francisco began accepting applications for e-scooter operating permits. The permits are part of a one-year pilot program meant to evaluate the effectiveness of the shared scooter system. Ben Jose, SFMTA Offers Two Permits for One-Year Powered Scooter Pilot, SFMTA (Aug. 30, 2018).

This includes some cities, like Boston, that are currently prohibited by state law from allowing the scooters. However, despite state laws opposing electric scooters, these cities see the vast potential for future expansion and are working to get scooters authorized. See, e.g., Nik DeCosta-Klipa, Dockless Electric Scooters Could Return to the Boston Area, But Probably Not in 2018, Boston.com (Sept. 18, 2018), https://www.boston.com/news/local-news/2018/09/18/bird-lime-scooters-boston-cambridge (discussing Boston’s push to allow e-scooters and the state legislation that outlaws them). ↑

See Populus, supra note 7, at 16 (suggesting that cities develop strategies to more effectively integrate new mobility service providers into the “broader transportation ecosystem.”).

Regina Clewlow, In the Scooter Wars, It Turns Out Cities Get to Decide Who Rules the Streets, Forbes (Aug. 31, 2018), https://www.forbes.com/sites/reginaclewlow/2018/08/31/in-the-scooter-wars-it-turns-out-that-cities-get-to-decide-who-rules-the-streets/#6f90c0283f9d (discussing how Uber caught cities off-guard, how e-scooters did as well, and how cities are working to exert greater control over their transportation systems).

The percentage of people who have ever used an e-scooter in major cities is below five percent, indicating that there is significant growth potential. See Populus, supra note 7, at 8.

See id. at 8–9 (noting that, in addition to low adoption rates, many vehicle trips are less than three miles and that micro-mobility services are targeted at replacing these short-distance automobile trips).